Citation Nr: 21061628 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-31 455 DATE: October 4, 2021 REMANDED The issue of entitlement to service connection for a left knee disability, to include as a qualifying chronic disability, is remanded. The issue of entitlement to service connection for a right knee disability, to include as a qualifying chronic disability and/or secondary to a left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 2007 to September 2014, during which time he was deployed to Qatar from January to April 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, denied service connection for right and left knee disabilities. The Veteran disagreed with those denials and this appeal ensued. The Board notes that on his June 2017 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran checked the box indicating his desire for a Board videoconference hearing before a Veterans Law Judge. The requested hearing was first scheduled for August 2, 2019, but the Veteran requested a postponement of that hearing. His requested hearing was then rescheduled for January 15, 2020, but the Veteran failed to report for the scheduled hearing. As the record does not reflect that Veteran has either explained his failure to report, or requested rescheduling of the hearing, the Board will proceed as though his hearing request has been withdrawn. See 38 C.F.R. § 20.704(d). Unfortunately, the Board finds that, for reasons expressed below, further action by the agency of original jurisdiction (AOJ) on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. Concerning the Veteran's claims for right and left knee disabilities, the Veteran was afforded a VA examination in May 2017. At that time, the examiner noted the Veteran's complaints of knee pain in and since service, but stated that medical findings did not demonstrate any abnormality or diagnosed right or left knee disability. The examiner diagnosed "joint pain in both knees based on history", but noted that current examination demonstrated normal objective findings. The examiner thus opined that it is less likely than not that the Veteran has a right or left knee disability that was related to his military service, as there was no condition to link to military service and "no chronicity of condition." Notably, the Veteran was also provided with a VA Gulf War examination in May 2017. The report of that examination notes that the Veteran was claiming "a disability pattern related to left knee, right knee, mid back, and upper back pain." The AOJ thus found it necessary to obtain an opinion regarding whether the Veteran disability pattern was such that service connection was warranted pursuant to the provisions of 38 U.S.C. § 1117. In this regard, the Board notes that presumptive service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(1). The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(d)(2). At the outset, the Board notes that the Veteran's service records confirm that he served in the Southwest Asia theater of operations during the requisite time period. As such, presumptive service connection may be warranted if it is shown that the Veteran has a qualifying chronic disability, to include: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and/or (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. 38 U.S.C. § 1117(d); 38 C.F.R. § 3.317(a)(2). In the instant case, despite the fact that the AOJ found it necessary to develop whether service connection for right or left knee disabilities, to include as a qualifying chronic disability, may be warranted, the AOJ's adjudication of the Veteran's claims for service connection for right and left knee disabilities fails to consider whether service connection for such on a presumptive basis under 38 C.F.R. § 3.317(a) is warranted. Furthermore, regarding this theory of entitlement, the Board finds that the May 2017 VA Gulf War examination is not adequate to rely upon for adjudication purposes. Notably, the VA examiner stated that "[t]he Veteran's disability pattern is a disease with a clear and specific etiology and diagnosis." However, as discussed above, no diagnosis was given for the Veteran's claimed right and left knee pain. The examiner then opined that it was less likely than not that the Veteran's disability pattern or diagnosed disease was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As rationale for that opinion, the examiner stated that the "claimed conditions are secondary to musculoskeletal trauma and senescence." In this regard, the Board points out that there is no evidence of any trauma related to the knees in the Veteran's service or post-service treatment records. Indeed, when the Veteran was seen in service in August 2014 for complaints of left knee popping and right knee pain, it was noted that there was "no history of trauma or injury." The Veteran's post-service treatment records similarly do not associate the Veteran's complained of bilateral knee pain with any specific injury, and the Veteran has not reported having sustained a specific injury. Thus, without some further explanation, to include a discussion of the evidence relied upon to conclude that the Veteran's disability pattern has a clear diagnosis and that it is related, in part, to musculoskeletal trauma, the Board cannot rely on the examiner's conclusory opinion in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (providing that a "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"). Accordingly, the Board finds that claims for service connection for right and left knee disabilities must be remanded for the AOJ to afford the Veteran a new VA examination and obtain a medical opinion as set forth in the remand directives, below, and for the AOJ to adjudicate in the first instance whether service connection for such is warranted on a presumptive basis under 38 C.F.R. § 3.317(a). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when the Secretary provides the claimant with a VA medical examination or opinion, he must ensure that the examination or opinion provided is adequate). The Board also points out that although the May 2017 VA examiner found no evidence of a current right or left knee disability, bilateral knee pain was noted. Initially, the Board notes that past precedent has held that pain alone, without a diagnosed or identifiable underlying malady or condition, generally does not, in and of itself, constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). However, in Saunders v. Wilkie, the United States Court of Appeals for the Federal Circuit (Federal Court) found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, the May 2017 VA examination report suggests that the Veteran's bilateral knee pain results in functional limitation or functional impairment, but the examiner did not further comment on the impact of such limitation or impairment. Accordingly, the matters must also be remanded for the Veteran to be afforded a new VA examination to assess whether the Veteran's left or right foot pain can be considered a disability for compensation purposes, if no diagnosis can be rendered when reexamined. Additionally, as noted above, the Veteran's service treatment records show that the Veteran complained of right and left knee symptomatology in service and post-service treatment records show continued complaints of knee pain. Despite this evidence, the May 2017 VA examiner found "no chronicity of condition." In so concluding, it does not appear as though the VA examiner considered the Veteran's lay statements regarding onset and continuity of symptoms. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (stating that "[t]he examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion"). Thus, as part of the opinion to be obtained in remand, it is imperative that the examining clinician discuss the Veteran's reports of knee pain in and since service. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right and left knee pain. The claims folder, to include a copy of this remand, must be provided to and reviewed by the examiner in conjunction with the examination. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should first identify any right or left knee disability. If the examiner finds there to be no pathology to which to attribute the Veteran's complained of right and/or left knee symptomatology, to include knee pain, the examiner should address the functional effects/limitations of the Veteran's right and left knee pain, to include whether pain results in functional impairment of earning capacity. Then, as to each diagnosed disability, to include whether pain results in functional impairment of earning capacity, the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in or is otherwise related to the Veteran's active duty service, to include any presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (Continued on the next page) If it is determined that the Veteran does not have a right or left knee disability, to include whether pain results in functional impairment of earning capacity, that can be attributed directly to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's disability pattern is consistent with: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multi symptom illness of unknown etiology, or (3) a diagnosable chronic multi symptom illness with a partially explained etiology. A complete, clearly stated rationale for all opinions expressed must be provided and the examining clinician must also consider and discuss all lay assertions, to include the Veteran's assertions as to knee pain in and after service (which the Board finds credible). A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.